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Court of Appeals tells FCC they can’t open doors to municipal networks by preempting state laws

It’s a national decision that has an impact on Minnesota cities and counties go about encouraging better broadband. Here’s a quick breakdown on the action from Watch Dog…

In a unanimous opinion issued Wednesday, the three-judge panel of the U.S. Court of Appeals for the Sixth Circuit ruled in favor of the attorneys general of Tennessee and North Carolina. Those states filed the case after the FCC voted in February 2015 to block laws that prevent municipal broadband networks from expanding outside their territories.

Some folks are happy about the decision – such as the Watch Dog folks…

Berin Szoka, president of TechFreedom, said it “took enormous chutzpah” for the FCC to try to preempt those state broadband laws in the first place.

“This is a well-deserved rebuke for an agency run amuck,” he said. “It should have been obvious that the FCC would lose, since the Supreme Court rejected the idea that the FCC could preempt such laws over a decade ago — under far clearer statutory language. The court shredded the FCC’s claim that, while it could not require states to allow muni broadband, it could regulate the conditions under which they governed the networks that cities were allowed to build.”

FCC Chairman Tom Wheeler issued a statement on the ruling, noting that more than 50 communities have started developing their own broadband networks in the past 18 months. …

Szoka said the litigation distracts from the main broadband issues the FCC needs to address: how to make deployment easier.

“The agency is less interested in actual progress than in making headlines and stoking a small fringe of activists who prefer government-run networks over private provision of broadband for ideological reasons,” he said. “The greatest irony here is that the real barriers to deployment come from local governments themselves, and the FCC could help identify ways to cut red tape, lower fees, and build smarter infrastructure that can facilitate deployment. That could encourage both upgrades from incumbents and new entry from companies like Google Fiber. In short, government-run broadband should be a last resort, not a go-to solution.”

A circuit court decision this week means the digital divide in Tennessee and North Carolina will be allowed to continue. This week, the 6th Circuit Court of appeals decided to dismiss the FCC’s decision to encourage Internet investment by restricting local authority to build competitive Internet networks. In February, ILSR and Next Century Cities filed an Amicus Brief in support of the FCC’s position. Here is a selection of media stories which cite ILSR.

There are signs, however, that municipal broadband proponents were anticipating Wednesday’s outcome — and are already moving to adapt. One approach? Focus on improving cities’ abilities to lay fiber optic cables that then any Internet provider can lease; so far, only one state, Nebraska, has banned this so-called “dark fiber” plan, said Christopher Mitchell, who directs the Institute for Local Self-Reliance’s Community Broadband Networks Initiative.

“We’re pursuing strategies that are harder for the cable and telephone companies to defeat,” said Mitchell.

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About Ann Treacy

I have a Master’s Degree in Library and Information Science. I have been interested or involved in providing access to information through the Internet since 1994, when I worked for Minnesota’s first Internet service provider. I am pleased to be a part of the Blandin on Broadband Team. I also work with MN Coalition on Government Information, Minnesota Rural Partners, and the American Society for Information Science and Technology.